Welsh-Huggins v. Office of the Prosecuting Attorney, 19 JE 0005
| Decision Date | 13 September 2019 |
| Docket Number | No. 19 JE 0005,19 JE 0005 |
| Parties | Andrew WELSH-HUGGINS, Requester-Appellee, v. OFFICE OF the PROSECUTING ATTORNEY, JEFFERSON COUNTY, Ohio, Respondent-Appellant. |
| Court | Ohio Court of Appeals |
Atty. John C. Greiner, Atty. Darren W. Ford, Graydon Head & Ritchey LLP, 312 Walnut Street, Suite 1800, Cincinnati, Ohio 45202 for Requester-Appellee and
Atty. Jane M. Hanlin, Prosecuting Attorney, Jefferson County Justice Center, 16001 State Route 7, Steubenville, OH 43952, for Respondent-Appellant.
BEFORE: Carol Ann Robb, Gene Donofrio, David A. D'Apolito, Judges.
OPINION AND JUDGMENT ENTRY
{¶1} Respondent Office of the Jefferson County Prosecutor's Office appeals the decision of the Court of Claims ordering it to permit Requester Andrew Welsh-Huggins to inspect and receive copies of the August 21, 2017 video recording of Nate Richmond shooting the Honorable Judge Bruzzese outside the Jefferson County Common Pleas Courthouse. The video footage is from a Jefferson County Common Pleas Courthouse exterior security camera. Respondent asserts the Court of Claims incorrectly interpreted the applicable provisions in R.C. 149.433 and erroneously shifted the burden onto it to prove the footage was not a public record. For the reasons expressed below, we hold Respondent met its burden and the video footage constitutes a security record under the Public Records Act.
{¶2} On August 21, 2017, the Honorable Judge Bruzzese was shot outside the Jefferson County Courthouse by Nate Richmond. The judge was walking into work when Richmond approached him and began shooting. The judge was able to return fire and a probation officer walking into work was also able to return fire. The judge was wounded
but recovered; he was flown to a hospital in Pittsburgh and underwent surgery. Richmond died at the scene as a result of gunshot wounds
inflicted by defensive fire.
{¶3} The shooting and response were recorded on the courthouse video surveillance. There was a camera positioned outside the door where courthouse personnel entered and exited. Part of the shooting and part of the response was also recorded on a street camera.
{¶4} Requester is from the Associated Press and on the day of the shooting he requested a copy of the external courthouse surveillance under the Public Records Act. Respondent denied the request indicating it was not a public record; it was an infrastructure record and/or security record which was going to be used in a criminal or civil action.
{¶5} The request was made by Requester numerous times over the next nine months and was always timely denied by Respondent. The reason for the request was twofold. First, the Requester did not want to take law enforcement personnel's assessment that Richmond ambushed the judge. Second, the shooting of a judge going into the courthouse was seen as a great public interest.
{¶6} Following the repeated denials of the request, Requester filed a formal complaint in the Ohio Court of Claims pursuant R.C. 2743.75. 5/7/18 Complaint.
{¶7} Respondent filed a response to the complaint and a motion to dismiss asserting the video surveillance was not a public record because it was an infrastructure and/or security record. 9/11/18 Response and Motion to Dismiss. It argued the video shows security measures and responses. It also shows the camera's configuration, blind spots, and technical capabilities. Respondent argued the release of this video would give future attackers an advantage. Respondent filed the street camera video, the courthouse video surveillance, and still photographs of the attack. The courthouse video surveillance and the still photos were filed under seal. The still photographs were cropped so that no configuration systems were shown.
{¶8} Requester filed a motion in opposition to the motion to dismiss. 9/27/18 Response.
{¶9} The Special Master appointed to hear the matter requested additional information from Respondent, to which Respondent complied. 10/5/18 Order; 10/18/18 Supplement.
{¶10} Additional responses and replies were asserted by each party. One argument set forth by the Respondent was that the act of activating the video player software divulges infrastructure of the digital security surveillance system. It also asserted it should not be required to convert the media to another format.
{¶11} The Special Master recommended denial of the motion to dismiss with the case to be decided on the merits. 1/28/19 Report and Recommendation. As to the merits, the Special Master recommended an order to release the video surveillance. 1/28/19 Report and Recommendation. It found that none of the exceptions to public records applied, specifically the infrastructure and security records exceptions. 1/28/19 Report and Recommendation. It cited the Ohio Supreme Court for the proposition that footage of the location of doors, windows, and vents shows no more than what would be revealed in a simple floor plan and thus, is not an infrastructure record. 1/28/19 Report and Recommendation. It also determined the footage was not a security record:
The video is not a planning, training, investigatory, or policy document maintained by the office for security purposes. (Supp. Response at 6.) The video contains no audio, and therefore no verbal commands, codes, perceptions, reasoning, choices, plans, or explanations are conveyed. While relevant law enforcement and security offices likely created after-action reports and applies lessons learned to their training and protocols, the courthouse video itself does not contain specific and unique vulnerability assessments or response plans. There is no evidence presented that the video recording at issue actually constitutes "information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage," or was assembled, prepared, or maintained by a public office * * * to prevent, mitigate, or respond to acts of terrorism."
1/28/19 Report and Recommendation.
{¶12} The report, however, indicated any image of any peace officer who it is confirmed to have had an undercover or plain clothes assignment at the time of the public records request or at the present time may be redacted. 1/28/19 Report and Recommendation.
{¶13} It then held Respondent was required to copy the record in an available format and any format that the public office's equipment was programmed to export. 1/28/19 Report and Recommendation.
{¶14} Respondent filed timely objections and Requester filed responses. 2/5/19 Objections; 2/13/19 Response to Objections.
{¶15} The Court of Claims overruled the objections and adopted the Special Master's Report and Recommendation. 2/10/19 J.E.
{¶16} Respondent timely appealed the Court of Claims' decision. Respondent filed a stay in the Court of Claims, which was granted. 3/13/19 J.E.
{¶17} Respondent sets forth ten assignments of error. Many of the assignments can be addressed together as there are four main topics of the assignments – Infrastructure Record, Security Record, Creation of a New Record, and Shifting Burden.
{¶18} Pursuant to R.C. 2743.75, Requester asked for the release of the video footage of the shooting claiming the video is a public record. R.C. 2743.75 states that the request can be made to the Court of Claims. R.C. 2743.75(D). The case proceeded through the statutory procedure set forth in division (D) and (F) of that section. Division (G) dictates any appeal from the Court of Claims' decision is to be filed in the "court of appeals of the appellate district where the principal place of business of the public office from which the public record is requested is located." R.C. 2743.75(G)(1). Consequently, our court is the proper court to hear the appeal and pursuant to division (G)(1) the appeal is to be given prompt consideration.
{¶19} " R.C. 149.43(B)(1) requires a public office to make copies of public records available to any person upon request, within a reasonable period of time." State ex rel. Rogers v. Department of Rehabilitation and Correction , 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 6. The policy underlying the Public Records Act is that "open government serves the public interest and our democratic system." Id. , citing State ex rel. Dann v. Taft , 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20. Given that policy, the public-records statute is to be "construed ‘liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records.’ " Rogers , citing State ex rel. School Choice Ohio, Inc. v. Cincinnati Pub. School Dist. , 147 Ohio St.3d 256, 2016-Ohio-5026, 63 N.E.3d 1183, ¶ 12, quoting State ex rel. Cincinnati Enquirer v. Hamilton Cty. , 75 Ohio St.3d 374, 376, 662 N.E.2d 334 (1996).
{¶20} There are statutory exceptions to public records. Two such exceptions are infrastructure records and security records as defined by R.C. 149.433. R.C. 149.433(B)(1) and (2) specially indicate infrastructure and security records are not public records and are not subject to mandatory release under R.C. 149.43 :
{¶21} Respondent argues the video footage falls under these two provisions.
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Welsh-Huggins v. Jefferson Cnty. Prosecutor's Office
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